IN THE MATTER OF JERMANE CARTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2353-11T1

IN THE MATTER OF JERMANE

CARTER, BURLINGTON COUNTY.

___________________________________

June 11, 2013

Argued February 26, 2013 - Decided

Before Judges Alvarez, Waugh, and St. John.

On appeal from the New Jersey Civil Service Commission, Docket No. 2009-2672.

Mark W. Catanzaro argued the cause for the appellant Jermane Carter.

Laurel B. Peltzman argued the cause for respondent Burlington County (Capehart & Scatchard, P.A.,attorneys; Carmen Saginario, Jr., of counsel and on the brief; Ms. Peltzman and Katheryn Eisenmann, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Jermane Carter appeals the final administrative agency decision of the New Jersey Civil Service Commission (Commission) upholding discipline imposed by respondent County of Burlington (County), his employer. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Carter has been employed by the County as a correction officer since February 2006. On October 28, 2008, he was assigned to fill-in for other officers during breaks. He and other such officers were summoned to the area in the Burlington County Detention Center at which a meeting of Narcotics Anonymous was being held. R.F., an inmate who had been removed from the meeting, was refusing to return to his assigned tier. Carter and his colleagues were assigned to escort R.F.

R.F. became abusive and disruptive. At one point, when the officers had him against a wall, he broke free and turned toward them. Carter then punched R.F. in the face with a closed fist, causing him to fall to the ground. The officers subsequently subdued R.F. Carter's report of the incident stated that R.F. was subdued "with mini[m]um force," without reference to the closed-fist punch in the face.

Following an internal investigation, the County issued a preliminary notice of disciplinary action on November 7, 2008. The charges were as follows:

N.J.A.C. 4A:2-2.3(a) 1, 6, 7, 11

1. Incompetency, inefficiency or failure to perform duties

6. Conduct unbecoming a public employee

7. Neglect of duty

11. Other sufficient cause viol[ation of] BCDF/CWRC Policy & Procedure Manual dated 2/1/04, Sections 1023, 1036, 1043, 1044, 1065, 1066, 1150

Specification(s):

On 10/28/08, while on duty as a C/O working the 1500-2330 shift, you used unnecessary & unauthorized force on Inmate [R.F.] by punching him in the face with a closed fist, while the Inmate was backing away from you causing no threat to you or staff. By use of unnecessary force you caused bodily harm to the Inmate's facial area (Lips) which caused him to fall to the ground. Furthermore, you purposely & knowingly provided a false & misleading statement in an attempt to hide your misconduct.

A hearing was held later in November. The hearing officer sustained the charges. In January 2009, the warden of the detention center issued a final notice of disciplinary action, adopting the hearing officer's findings and imposing a 120 day suspension.

Carter appealed his suspension to the Commission, which referred the case to the Office of Administrative Law for hearing as a contested case before an administrative law judge (ALJ). Following four days of testimony and an opportunity to submit post-hearing briefs, the ALJ issued an initial decision recommending that the charges be dismissed. After the filing of exceptions by the County and responses by Carter, the Commission declined to adopt the ALJ's initial decision. Instead, it upheld the discipline imposed by the County. This appeal followed.

II.

On appeal, Carter argues that the Commission's decision was arbitrary, capricious, and unreasonable because it failed to give due deference to the ALJ's decision and because Carter had acted in accordance with his training by the County.

A.

Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily delegated responsibilities a "strong presumption of reason ableness." City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appel lant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C.1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. SeeIn re Parlow, 192 N.J. Super.247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see alsoN.J.S.A.52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after he or she determines "from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").

In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower, supra, 64 N.J.at 93, if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood v. State Police Training Ctr., 127 N.J.500, 513 (1992) (citing Clowes, supra, 109 N.J.at 587).

B.

The County's Department of Corrections has a written policy on the use of force against prisoners. Policy 1150 provides that "at no time shall an officer intentionally strike an inmate in a non-life threatening situation about the head, neck, face, back or groin." The County's charges against Carter were based primarily on his having punched R.F. in the face with a closed fist during a non-life threatening situation and then reporting that "minimum force" had been used during the incident.

The ALJ concluded that Carter "reacted to what he perceived to be the threat of an imminent attack" on himself and the other officers, based upon R.F. having "assumed a fighting, aggressive stance, with his hands up in a threatening way." The ALJ further determined that Carter "believed" that his report was accurate. Consequently, the ALJ concluded that the charges were not sustained.

The Commission explained its reasons for rejecting the ALJ's findings and conclusions as follows:

During an Executive Session of the Commission's December 7, 2011 meeting, the Commission members viewed a videotape of the incident involving the appellant and R.F. As an initial matter, the Commission notes that it agrees with the assessment of the ALJ that the footage of the incident itself was less than ideal in that it was taken from a distant vantage point, and the video is somewhat choppy and grainy. Nevertheless, the video footage did contain some telling evidence. For example, in a better quality portion of the video, R.F. can be observed in the hallway outside the NA meeting as he is ejected from that meeting. Although it is evident that R.F. is speaking in an animated manner and waving his arms, none of the officers who come into contact with him exhibit any particular concern with R.F.'s behavior. For example, one officer who is in the hallway with R.F. at this time is seen casually sipping his coffee and turning his back on R.F. more than once. Similarly, as the escort commences, after R.F. breaks away from the escort and turns and faces the officers, right at the point in time when the appellant punches him, two of the four officers involved in the escort are standing casually and do not react until after the punch is thrown and R.F. is propelled to the floor. Their actions do not appear consistent with the claim that a reasonable person would have felt that his or her life was threatened by R.F.'s words and actions. In addition, the visual evidence does not support the claim that the extreme action of striking the inmate was the only reasonable means with which to subdue him. In addition, the Commission does not agree with the ALJ's assessment of the video that R.F. can be seen assuming an aggressive position. At no point can R.F. be clearly seen in a threatening stance. Based on these observations, the Commission is unable to adopt the ALJ's conclusion that R.F.'s behavior constituted a life-threatening situation which warranted the extreme step of punching him in the face. While the Commission does not discount the appellant's testimony that he subjectively believed that R.F. would harm him, given the totality of the circumstances, the Commission concludes that this belief was not reasonable.

Having established that the appellant punched R.F. without adequate provocation, the Commission must assess whether the appellant's report of the incident was adequate. The appellant's report provides, in pertinent part, "with minimum force [Inmate R.F.] was taken to the ground where he was sprayed and cuffed." The appellant does not dispute that he punched R.F., which caused him to fall to the ground. The Commission finds that the appellant's characterization of his actions in his report was purposely misleading. If the appellant believed, as he testified, that he punched R.F. in self-defense, it is unclear why he would not truthfully report this action. As written, the appellant's report implies that R.F. was taken to the ground in an effort to subdue him. This is not what occurred. The appellant punched R.F. in the face, in a claimed effort to prevent R.F. from attacking the officers.

Having found that the appellant punched R.F. in a non-life threatening situation and was not forthcoming in his report of the incident, the Commission must now determine if these actions constituted incompetency, inefficiency or failure to perform duties, conduct unbecoming a public employee, neglect of duty, and violations of various departmental policies and procedures. With regard to the latter charge, the appellant was alleged to have violated sections 1023, 1036, 1043, 1044, 1065, 1066, and 1150 of the appointing authority's Policy and Procedures Manual. Section 1036 provides, in pertinent part, that "[n]o officer shall engage in threatening or assaultive conduct at any time," and Section 1043 provides that "[t]here shall be no corporal punishment: no officer/employee shall strike or lay hands on an inmate unless it is in self-defense, [to] prevent injury to other persons, property, [to] prevent an escape, quell a disturbance or to enforce a valid order given by a supervisor." Section 1043 further states that only force necessary to accomplish the mission shall be used. Section 1044 provides that officers will be subject to discipline if they willfully mistreat inmates, and Section 1150 states that "at no time shall an officer intentionally strike an inmate in a non-life threatening situation about the head, neck, face, back or groin." The Commission finds that the appellant's interaction with R.F. on October 28, 2008 constituted violations of these rules. The appellant struck R.F. in the face, a considerable use of force, in the absence of a reasonable belief that his safety or that of the other officers was significantly threatened.

Section 1065 states that "no officer shall make, or cause to be made, any false or misleading statements or written reports by intentional omission or misrepresentation [of] facts or information known to an officer," and Section 1066 provides that "no officer shall alter or tamper with official reports, nor enter in any official book or record, any false or misleading statements." As determined above, the appellant's report of the October 28, 2008 incident was, at best, misleading. He made no mention of the extent of his contact with R.F., and his report implies that the inmate was simply subdued, not punched with sufficient force that he fell to the floor. As such, the Commission concludes that the appellant violated these departmental policies and procedures. In addition, the Commission finds that the appellant violated Section 1023, which generally prohibits violations of any departmental regulations.

Further, by failing to comply with the aforementioned departmental rules and regulations, particularly the provisions governing truthful incident reports, the appellant was guilty of incompetency, inefficiency or failure to perform duties and neglect of duty. It is axiomatic that County Correction Officers must report in detail all unusual incidents in which they are involved or which they witness. This is one of the basic duties of all personnel in a custodial facility. See In the Matter of Michael Ogonowski (CSC, decided November 22, 2011). Likewise, the Commission finds that the inmate abuse present here constitutes conduct unbecoming a public employee.

Having reviewed the Commission's reasons in light of the record before us, we conclude that the Commission's decision was not arbitrary, capricious, or unreasonable. Our reading of the ALJ's decision suggests that he took a different approach to a correction officer's duty in the situation facing Carter than that established by the County, as reflected in Policy 1150. The Commission reached the opposite conclusion based on the County's policy and the record before it. Our standard of review requires us to accord a "strong presumption of reason ableness" to the Commission's"exercise of [its] statutorily delegated responsibility." City of Newark, supra, 82 N.J. at 539. We are satisfied that the Commission has adequately explained its reasons for reaching a result different from that of the ALJ. S.D., supra, 349 N.J. Super.at 485. Our role is not to second guess the Commission. Clowes, supra, 109 N.J. at 588.

As already noted, the Commission's conclusion is fully consistent with the provisions of the County's regulations governing use of force against inmates. The ALJ did not determine that Carter faced a life-threatening situation when he delivered the closed-fist punch to R.F.'s head, which is a prerequisite for such action. In addition, the ALJ's explanation of Carter's report, that it reflected Carter's estimation of the minimal force required under the circumstances, does not address the issue of whether he accurately described what happened. Under the applicable regulations, a closed-fist punch to an inmate's head simply cannot accurately be described as "minimum force."

Affirmed.